Idaho Court Throws Out Conviction After Prosecutor Recites ‘Dixie’

Prosecutors have until Jan. 9 to decide whether to appeal a ruling tossing out the conviction of a black Idaho man because the prosecutor quoted lyrics to the Southern Civil War anthem "Dixie."

The man, James D. Kirk, 46, was sentenced to 20 years in prison for his 2013 conviction on charges of lewd conduct and sexual battery of a minor child. But in a ruling made public this week, the Idaho Court of Appeals overturned Kirk's conviction, finding that Canyon County Deputy Prosecutor Erica Kallin's recitation of "Dixie" during closing arguments unconstitutionally tainted his trial by "injecting the risk of racial prejudice into the case." The state attorney general's office told The Idaho Statesman of Boise that it was still reviewing the opinion.

In the ruling, which is dated Dec. 19, the court quoted Kallin as having told jurors: "Ladies and gentlemen, when I was a kid we used to like to sing songs a lot. I always think of this one song. Some people know it. It's the Dixie song. Right? 'Oh, I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away.' And isn't that really what you've kind of been asked to do?"

In an eight-page opinion, the court wrote that while Kallin's citation of the song was "indirect and perhaps innocently made," any invocation of race, "even if subtle and oblique, may be violative of due process or equal protection." In Kirk's case, the court said, "the prosecutor's mention of the title, 'Dixie,' as well as the specific lyrics recited by the prosecutor, referring to 'the land of cotton,' expressly evoke that setting with all its racial overtones."